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Proving paternity, claiming maintenance for FDHs’ children in HK

21 March 2018

By Pathfinders

In September and December 2017, we shared information about the maternity rights of foreign domestic workers and the rights of children born to them in Hong Kong. In this issue, we discuss the less common but complex topics of establishing the child’s paternity and claiming maintenance payments for the child.

The ending of a relationship is never easy, and when an illegitimate child is involved, things can become complicated. If the father is not willing to acknowledge he is the father, the FDW mother may need to fight to establish paternity and receive maintenance payments to help raise her child.

This article provides some information about establishing paternity and making maintenance claims. The contents are based on PathFinders’ experience and do not constitute legal advice. Case names have been changed.

A case story: Flora and her son, Jimmy

Flora met Bill one Sunday when she was out having dinner with her girlfriends. Bill had been living and working in Hong Kong for over seven years. The two were instantly attracted to each other and, soon after, started what Flora believed to be a serious relationship. A few months later, Flora found out she was pregnant and broke the news to Bill. Instead of being supportive, Bill denied he was the father and refused to see Flora again. She was heartbroken. She was single with no experience in pregnancy. She was left alone to handle the situation and couldn’t imagine what life would be like for her and her unborn baby. Through a friend’s referral, Flora contacted PathFinders for assistance.

With counseling and support from PathFinders, Flora managed her pregnancy safely and gave birth to a baby boy, Jimmy. Bill still refused to accept Jimmy as his son. He had a stable income and was a Hong Kong permanent resident. As such, he could give Jimmy a favorable Hong Kong immigration status and a sustainable life. With these considerations in mind, PathFinders counseled Flora about making paternity and maintenance claims on Jimmy’s behalf against Bill.

The rights of FDWs and their HK-born babies when the fathers deny paternity

There are some general misconceptions that we would like to clarify to readers. If the alleged biological father’s name is not on the child’s birth certificate, the mother will first need to prove the father’s paternity before she can make a maintenance claim.

Also, establishing paternity does not automatically give the father custody of the child. The father would need to file his own, separate claim for custody of the child.

Where the FDW is not legally married to the father of the child, she can only claim maintenance payments for the child and not for herself.

Petitioning for paternity and claiming maintenance: Shall I, or shall I not?

Going through legal battles isn’t easy for anyone. It can be stressful and needs to be thought through carefully before deciding whether to proceed.

Cost is commonly the first thing to consider. The Legal Aid Department ensures that any person with reasonable grounds for taking or defending a legal action is not deterred from doing so by a lack of means (money). When applying for legal aid, the LAD considers the financial resources of the claimant (the means test) and the available evidence (the merits test) of whether the case has a reasonable likelihood of succeeding. Provided both test criteria are met, Legal Aid assistance will be granted.

LAA requires the applicant to provide honest information. If, for example, assets or money have not been disclosed to the LAD or a DNA test shows the alleged father is not the biological father, the FDW mother may be liable for the legal costs involved and be subject to criminal investigation – prosecution – for making false statements.

It is important to have valid evidence to prove the identity and connection between the mother and the child’s alleged father, e.g. a copy of his HKID, proof of his home address in Hong Kong, photos showing a relationship, etc. In some cases we handled, the FDW did not know his full name and his personal details; in other cases, he had left Hong Kong, making filing of claims for paternity and maintenance difficult if not impossible.

The mother also needs to consider the emotional and physical burden she and her child may have to endure during the litigation. Tough and intimate questions will be asked about the relationship. They will have to attend hearings and meet with lawyers.

After careful evaluation of her options with PathFinders’ case manager, Flora brought legal claims against Bill on behalf of Jimmy. After a three-year litigation, the court ruled that paternity was established and ordered Bill to pay maintenance for Jimmy.

What to expect after the court cases

For successful cases like Flora, obtaining Jimmy’s Hong Kong permanent residency status and a stable monthly maintenance for him has given Jimmy and Flora hope for the future. Jimmy is now attending a local primary school in Hong Kong. Flora believes that she and Jimmy would not be where they are today without her determination and persistence and the support from PathFinders and her lawyer.

For the full procedures for paternity and maintenance claims, readers may contact PathFinders by email: info@pathfinders.org.hk or call our hotline: 5190 4886.

To protect themselves and their children, FDWs are advised to make careful family planning and life decisions. PathFinders provides classes and workshops about women’s health, maternity rights, education about relationships and legal rights. For class information and to enroll, please visit our website, www.pathfinders.org.hk.